Health and Social Care Bill

Lord Hunt of Kings Heath Excerpts

Tuesday 13th March 2012 Lords Chamber

[Baroness Howarth of Breckland]

My Lords, I had not intended to speak in this debate, but I want to strike what might be a slightly discordant note at this point in the proceedings. I have a question for the noble Baroness, Lady Emerton, and the noble Earl in relation to clarification.

I will speak later in relation to social workers and that bit of social care which we seem to have forgotten. What has concerned me most in this debate is the total confusion between social care workers and healthcare workers. What really concerns me about the amendment is that it appears to be the health professional who must give instruction to those working in a variety of establishments. I declare an interest as someone who is responsible as a trustee for a large number of elderly and disability care homes. In some of those places, someone qualified in social care and not healthcare is in charge of the establishment. They are therefore responsible for ensuring that the programmes of care are designated with some healthcare professionals, because in nursing homes you need both working together.

I want to be absolutely sure that we do not arrange more confusion, which we will be discussing later today in relation to social care, and undermine even further those people who are looking after the real day-to-day care, not the medical health needs. You need people looking after medical health needs in these establishments, but you also need to worry about stimulation, relatives visiting, the psychological approach to the people in the home, how they will get to hospital and helping the hospital to understand what people with disabilities are saying. All of those things are crucial and need equal registration and care.

I am attracted to the voluntary register because it means that we can look at all these people who are working in the field who have their own professional positions but are different. I would like some clarification and for the House to understand that there is not just a medical group of people caring but a whole tranche of people out there in establishments and in the community looking after those needs, which I am sure noble Lords, if they were in that position, would also want to have looked after.

[Lord Hunt of Kings Heath]

My Lords, this has been a good debate and I, too, congratulate the noble Baroness, Lady Emerton, on her initiative in bringing forward her amendment. I should remind the House that I chair an NHS foundation trust and, like my noble friend Lady Wall, we employ many hundreds of healthcare support workers. I agree with everything my noble friend said.

The noble Baroness, Lady Howarth, raised an important point. We are coming on to the issue of social care regulation and the House will know that I am very concerned about the transfer of social care regulation to what is essentially a health body. The noble Baroness, Lady Emerton, will want to respond, but it seems to me that what she has tried to do is to allow the House to have a specific debate on healthcare support workers. The amendment is very much a statement of principle and we will come on to social care workers in a later debate.

--- Later in debate ---

[Lord Mackay of Clashfern]

Before the noble Lord sits down, perhaps I may raise two points with him from his great experience of the health service. First, is it appropriate for the fundamental provision to be an amendment to a statutory order rather than for it to be done through primary legislation? Secondly, on delegation, the amendment states that,

“a health care support worker shall be an individual whose work is routinely delegated to them by a registered nurse or midwife”.

Could not a healthcare support worker have an independent assignment from the employer? In other words, it would be not be delegation from a registered nurse but direct employment on that basis. I would like help on that if possible.

[Lord Hunt of Kings Heath]

My Lords, when I was in government, I was always very wary of interventions from the noble and learned Lord when he required help on an answer that I had given. I should probably let the noble Baroness, Lady Emerton, answer for herself, but perhaps I may make two points. First, the noble Baroness has been very inventive in using this Bill as a way of raising these concerns. As a number of clauses, to which we shall come shortly, relate to regulation, her amendment is quite in scope. Secondly, this is very much a debate on the principle. I have no doubt that, if the noble Baroness were to press the amendment to a vote and was successful, the noble Earl, Lord Howe, would come back at Third Reading or in the other place with a tidying-up amendment which dealt with the issues that the noble and learned Lord has raised, respecting the intent of the House but ensuring that the statute was as tight as it could be. It is probably not for me to answer for the noble Baroness.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, this has been another excellent debate about a critical issue: how we ensure that the staff who deliver NHS care have the training, support and appropriate regulation to enable them to do so. I pay tribute to the noble Baroness, Lady Emerton, for her advocacy of this cause, which is of course of central importance.

This amendment would require the Nursing and Midwifery Council to regulate healthcare support workers on a mandatory basis. I hope that I do not need to convince the noble Baroness that we have given this considerable thought. The Government’s view, like that of the noble Baroness, Lady Pitkeathley, is that compulsory statutory regulation is not the only way to achieve high-quality care. It is no substitute for good leadership at every level and the proper management of services, which is perhaps the most relevant issue in the context of the examples of poor care cited by the noble Baroness, Lady Young, to whom I listened with great attention.

Regulation can respond to concerns about the practice of professionals when they arise, but the regulator cannot be in the room all the time. On the other hand, employers are often in a position to act early, when concerns first arise and before harm occurs.

Let us remember that there are existing tiers of regulation that protect service users, particularly the vetting and barring scheme, through which unsuitable workers can be barred from working with vulnerable adults and children. I say to the noble Baroness, Lady Masham, in particular, that that includes where regulated nurses are struck off. If there are concerns that they may pose a risk, they should be referred to the Independent Safeguarding Authority. The Care Quality Commission also enforces standards for providers of health and social care services.

There is no difference between the noble Baroness, Lady Emerton, and the Government on the central issue. We recognise the need to drive up standards for support workers and to facilitate employers appropriately to employ, delegate to and supervise health and social care support workers. To this end, we have commissioned Skills for Health and Skills for Care to work with professional stakeholders on the development of a code of conduct and minimum induction and training standards for healthcare support workers and adult social care workers in England. The noble Baroness has expressed her doubts about that decision, but I noticed with interest that, in its recent addendum to its response the House of Commons Health Select Committee, the NMC stated clearly that it supports the Government’s announcement that Skills for Health and Skills for Care have been commissioned to do this work and to develop a delegation standard for nurses and midwives that will provide an effective framework for public protection.

We confidently expect Skills for Health and Skills for Care to engage with nursing professionals, including educationalists, in taking this forward. There are registered nurses on the proposed membership of the steering group for the work that we have commissioned from Skills for Health and Skills for Care, and I am happy to suggest in response to the noble Baroness that a university lecturer should also be included. More generally, we would expect a broad programme of engagement as part of the work to take this forward. We expect the standards to be agreed ahead of the establishment of voluntary registers for healthcare support workers and adult social care workers, which could be operational from 2013 onwards; so, to be clear, those workers meeting the standards of training and conduct would be able to be included on an assured voluntary register. We will ensure that the delivery of training for health and care assistants who are entitled to be included on a voluntary register is professionally led, and I can confirm that, following this debate, I will be writing to Skills for Health and Skills for Care to make this absolutely crystal clear.

--- Later in debate ---

Moved by

[Lord Hunt of Kings Heath]

241: Clause 208, leave out Clause 208

[Lord Hunt of Kings Heath]

My Lords, we now move on to another group on the regulation of healthcare workers, and social care workers as well. In debate in Committee, I made it clear that I was concerned about the decision of the Government to abolish the General Social Care Council and to transfer responsibility for regulation of social care workers to the Health Professions Council. I am concerned for two reasons. First, I know that the General Social Care Council had rather a bumpy ride to start with and was the subject of a review, which was critical of the way in which it performed. However, it is right to pay tribute to the tremendous work undertaken in the last two years under its current leadership and the chairmanship of Mrs Rosie Varley to improve and enhance the quality of the regulation by the council. It is very disappointing that the Government have decided that, just at the time when the GSCC is starting to prove itself, the whole thing is to be dismantled and the function transferred to the Health Professions Council.

I also do not understand why the Health Professions Council is considered to be the right regulator for social workers. There is a difference between social work and health work. We touched on that in the last debate. I agree with what the noble Earl, Lord Howe, said in response to the noble Baroness when he reflected on the value of social care workers but also on the difference in role. The Health Professions Council regulates a number of bodies, but they all have a health basis in the main. Therefore, it stretches the imagination to see how this body will effectively regulate social care workers in the future. The profession of social work is pretty fragile and having its own regulator is one of the building blocks for boosting the status, confidence and quality of the social work profession.

I oppose the abolition of the GSCC and the transfer of social worker regulation to the HPC in principle. If I am unsuccessful in persuading the Government, even at this stage, to change their mind, I suggest that a number of issues would help to reassure me and many social workers about the way in which the HPC will perform. This is why I have a number of amendments, which seek to ensure that there is an appropriate definition of “social worker”. I think that it would be appropriate, inside the HPC, to establish an office of chief social worker. I also think that the name of the HPC should recognise that it is regulating the social work profession. I have not yet had any rational answer as to why “Social Work”, or something of the sort, should not appear in the title of the HPC. We know that the reason is that the HPC has refused to have it. I think that the department is finding it difficult to tell the HPC that it is subject to parliamentary provision and that it is not enough, simply because it does not want “Social Work” in its title, not to agree to it. I refer the noble Earl, Lord Howe, to the Bill before us. It refers, in these clauses, to a number of orders, including health and social work orders. Therefore, there clearly cannot be an objection in principle to the use of “Social Work” in the title. It is totemic, but it is at least a way of showing the 100,000 individuals in the social work profession to be covered that in fact the HPC is not going to continue with a medical model of regulation.

My final point is this. I invite the noble Earl to state clearly that it is not his department’s intention that the HPC should eventually take over the regulation of nurses and doctors. He will know that a review is being undertaken of the Nursing and Midwifery Council and I gather that there are also proposals to change the governance of the General Medical Council. A number of people in the health service have told me that they think the eventual aim is for the HPC to regulate all the healthcare professions. The noble Earl would provide a great deal of reassurance if he would say that it is not his department’s long-term ambition to turn the HPC into the sole regulator of all the health and social care professions. I for one would be very concerned about that. I beg to move.

[Baroness Meacher]

My Lords, I shall speak to Amendment 241C, which is tabled in my name. I also support the amendments tabled by the noble Lord, Lord Hunt. I was tempted to add my name to them, but I was a bit late yesterday. These amendments concern the implications of abolishing the General Social Care Council and the dilution or indeed the elimination of some of the functions carried out by that body. I thank the Minister for the briefing meeting that he held yesterday. At the tail end of this most unpopular of Bills, and after what I gather have been more than 100 meetings with Peers and others, I want to acknowledge the extraordinary work that the noble Earl has done throughout.

The social work profession is perhaps the most battered profession in this country and, if I may say so, the previous Government did not help in that. A certain Secretary of State for Education in the other place took what I thought was completely unreasonable action following the Baby P incident, which left the social work profession pretty much on its knees. The idea of having a chief social worker in this country who would act as a spokesperson for social work—someone who would promote and defend it—is enormously justified at a time when the profession, as I say, is on its knees. It is very difficult to appoint good people because of the reputation of the profession and because of the actions of that Secretary of State. He happens to be a friend of mine, but I think that he made a terrible error on that occasion.

Amendment 241C seeks to ensure that best interest assessors under the Mental Capacity Act continue to have their training regulated. I realise that the Government’s agenda is to reduce regulation wherever possible and I broadly support that objective, because we have had too much regulation in this country. But there are limits to that process and I believe that this is one issue over which the Government have in fact gone beyond a reasonable limit. Post-qualification training is currently regulated by the General Social Care Council, but under the Bill only the training of approved Mental Health Act practitioners will be regulated by the Health and Care Professions Council. Although the GSCC accepts that it could have done a better job with that regulatory power, to do away with it altogether seems to be the absolute opposite of the right answer.

Why is this important? It is because the issue here is often about the deprivation of liberty of elderly patients with dementia and those with severe learning difficulties. Civilised countries always take extra care in protecting individuals where their liberty is being taken from them. It is somewhat arbitrary that these groups happen to fall into the ambit of the Mental Capacity Act on the one hand and that of the Mental Health Act on the other. I am sure that in time those two pieces of legislation will be brought together, but in the mean time we have to manage the fact that people are being detained either under the Mental Health Act or the Mental Capacity Act and that very similar processes are under way in the two sets of circumstances. Mental Capacity Act clients in residential homes or nursing homes, for example, who do not have the capacity to make their own decisions about their lives, are in essentially the same position as psychiatric patients who are not able to make a rational decision about whether they need to be detained in hospital.

Psychiatric patients are assessed by approved Mental Health Act practitioners to determine whether they warrant that detention. In Mental Capacity Act cases, the professional is assessing whether a particular decision is in the best interests of the patient or resident, assuming that the patient does not have the capacity to make the decision for themselves. In both cases this is likely to involve assessing whether the individual can live safely at home. That is the whole point. People are assessing pretty much the same thing under the two different pieces of legislation. It is true that in some cases approved mental health practitioners have to assess the risk to others, but the issues are honestly very similar. Is there any logic, therefore, in regulating one and not the other? We know that abuse of these adults is commonplace. Relatives may of course be absolute angels in terms of protecting their family members, but they may not be, and the best interest assessor is there to protect vulnerable people when relatives let them down.

The words of Mr Justice Peter Jackson in his ruling in the London Borough of Hillingdon v Steven Neary and Mark Neary and the Equality and Human Rights Commission highlight the importance of the deprivation of liberty safeguards. The deprivation of liberty safeguards were designed to protect the human rights of some of our most vulnerable people. Employers and supervisory bodies have to be sure that the professionals they charge with undertaking this vital role are competent, compassionate and able to approach the situation from both a practice and legislative basis. With the closure of the GSCC, I urge the Minister to put in place a system at least as robust as the current one, and ideally more robust, to ensure that the providers of training for best interest assessors can clearly demonstrate their ability to produce and, importantly, assess potential best interest assessors. That would go a long way towards protecting some of these very vulnerable citizens.

I want to turn briefly to a number of the amendments tabled by the noble Lord, Lord Hunt. The first concerns student registration, which we discussed in detail at the briefing meeting yesterday. I shall not go into all the detail again. However, it has to be said that if it is justified to register social workers, it has to be justified to register social work students. That is because these people are unknown and untried. They go into vulnerable people’s homes on their own and they are probably more of a potential risk to their clients than qualified social workers. There is once again an issue of logic here, which I hope the noble Earl will take seriously.

A further concern is that, as I understand it, the Health and Care Professions Council will not introduce the satisfactorily assessed and supported year in employment as a requirement before someone can be accredited as a fully qualified social worker. This is another important safeguard, as people have to prove themselves over the course of a year’s work. There is no great administrative problem about this. It is simply a requirement so that employers meet certain standards. I would argue that it is not a bureaucratic nonsense; it is an important requirement.

Finally, there is to be no regulation of social care workers. The arguments that were rehearsed in the previous debate probably apply just as much to this one. The case for statutory regulation where vulnerable people and low-paid workers are concerned seems absolutely overwhelming. Again, I hope that the noble Earl might agree also to have a review of this area. At the minimum, is the process of voluntary regulation really working?

I fear that the Government have gone too far in dismantling the protections for vulnerable clients. Of course employers and universities have important responsibilities for their workers and clients, but I hope that even at this late stage the noble Earl might want to maintain some state responsibility for the protection of these most vulnerable clients when their liberty may be taken from them.

--- Later in debate ---

Before I finish, I speak to government Amendment 246A, which is, I can assure the House, a minor and technical drafting correction. I hope that I have been able to reassure noble Lords of our commitment to strengthening the assurance processes in place for health and social care workers, and that the noble Lord will feel able to withdraw his amendment.

[Lord Hunt of Kings Heath]

My Lords, I thank the noble Earl for his lengthy response, particularly in relation to clinical psychologists and clinical perfusion scientists. I am sure that noble Lords will have noted with interest his remarks, and indeed we have had further discussions about it. The debate has shown that there is a weakness in the continuation of voluntary regulation that will not go away.

Turning to social work regulation, I must say that I am disappointed by the noble Earl’s response. Unless this is a Department of Health contribution to the review of public bodies and it is simply a way of getting the number it is responsible for down, I still do not understand the logic. There is no doubt—here I pay tribute to my noble friend for her sterling efforts, which have been continued by Mrs Rosie Varley—that the General Social Care Council was getting to grips with the issues identified in the review, so I cannot understand why it could not have continued. The advantages mentioned by the noble Earl in relation to the HPC could all have been developed by the GSCC. I come back to the points raised by the noble Baronesses, Lady Howarth and Lady Meacher, about the fragile confidence of the social work profession. Replacing its regulatory body with an all-singing, all-dancing essentially health body is not the best way to give it confidence.

On the title, I do not think that a strap-line is good enough. I simply point out to the Minister Clauses 216, 218, 219 and 220, which refer to the health and social work professions order. All the spurious arguments that have been made as to why this body cannot have social work in its title are given the lie by the fact that in this legislation the noble Earl is relying on that order. I would have thought that if the HPC was serious about wanting to develop confidence within the social work profession, it would have agreed to have the words “social work” in its title. However, I will not press Amendment 241A concerning the protection of the functions of social workers.

Amendment 241 withdrawn.

--- Later in debate ---

Moved by

[Lord Hunt of Kings Heath]

243: Clause 211, leave out Clause 211

[Lord Hunt of Kings Heath]

My Lords, I beg to move.

--- Later in debate ---

[Baroness Northover]

If noble Lords are happy, I will continue. I will be happy to answer any questions. All public health specialists, including those not currently subject—

[Lord Hunt of Kings Heath]

I think that the noble Lord, Lord Patel, wanted an early indication as to whether the noble Baroness was going to accept the amendment and then allow the debate. He is not looking for a winding-up speech at this point.

[Baroness Northover]

Noble Lords will know that the Government have already announced their intention to regulate all public health specialists so that we address the anomaly whereby some were regulated and others were not. If that is the answer that the noble Lord was looking for, put briefly, I hope that he will welcome it.